1
Fair Work Act 2009
s.394—Unfair dismissal
Patrice Tait
v
Spinifex Australia Pty Ltd T/A Spinifex Recruiting
(U2017/12212)
SENIOR DEPUTY PRESIDENT HAMBERGER SYDNEY, 13 MARCH 2018
Application for an unfair dismissal remedy; jurisdictional objection; whether the applicant
had completed the minimum employment period.
[1] This decision concerns an application by Patrice Tait (the applicant) for an unfair
dismissal remedy in relation to her alleged dismissal by Spinifex Australia Pty Ltd (the
respondent).
[2] This decision solely concerns the respondent’s jurisdictional objection that the
applicant had not completed the minimum employment period. The hearing of the
respondent’s jurisdictional objection was held on 8 and 20 February 2018. The applicant
represented herself, and the respondent was represented by a solicitor, Paul Macken.
The legislation
[3] Section 382 of the Fair Work Act 2009 (Cth) (the FW Act) stipulates that for a person
to be protected from unfair dismissal the person must, inter alia, have completed a period of
employment with his or her employer of at least the minimum employment period.
[4] The meaning of ‘minimum employment period’ is contained in s.383 of the FW Act as
follows:
‘Meaning of minimum employment period
The minimum employment period is:
(a) if the employer is not a small business employer - - 6 months ending at the
earlier of the following times:
(i) the time when the person is given notice of the dismissal;
(ii) immediately before the dismissal; or
[2018] FWC 1363[Note: An appeal pursuant to s.604 (C2018/3537) was
lodged against this decision - refer to Decision dated 2 July 2018 [[2018]
FWC 3929 and Full Bench decision dated 30 October 2018 [[2018]
FWCFB 6267] for result of appeal.]
DECISION
E AUSTRALIA FairWork Commission
https://www.fwc.gov.au/documents/decisionssigned/html/2018fwcfb6267.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2018fwcfb6267.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2018fwc3929.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2018fwc3929.htm
[2018] FWC 1363
2
(b) if the employer is a small business employer - - one year ending at that
time.’
[5] It is not in contention that the respondent is not a small business employer, and
therefore the relevant minimum employment period for the applicant is 6 months.
[6] ‘Period of employment’ is relevantly defined in s.384 of the FW Act thus:
‘Period of employment
(1) An employee’s period of employment with an employer at a particular time is
the period of continuous service the employee has completed with the employer
at that time as an employee.
(2) However:
(a) a period of service as a casual employee does not count towards the
employee’s period of employment unless:
(i) the employment as a casual employee was on a regular and
systematic basis; and
(ii) during the period of service as a casual employee, the employee
had a reasonable expectation of continuing employment by the
employer on a regular and systematic basis…’
[7] Service is relevantly defined in s.22 of the FW Act:
‘Meanings of service and continuous service
General Meaning
(1) A period of service by a national system employee with his or her national
system employer is a period during which the employee is employed by the
employer, but does not include any period (an excluded period) that does
not count as service because of subsection (2).
(2) The following periods do not count as service:
(a) any period of unauthorised absence;
(b) any period of unpaid leave or unpaid authorised absence, other than:
(i) a period of absence under Division 8 of Part 2-2 (which deals with
community service leave); or
(ii) a period of stand down under Part 3-5, under an enterprise
agreement that applies to the employee, or under the employee’s
contract of employment; or
[2018] FWC 1363
3
(iii) a period of leave or absence of a kind prescribed by the
regulations;
(c) any other period of a kind prescribed by the regulations.
(3) An excluded period does not break a national system employee’s continuous
service with his or her national system employer, but does not count towards the
length of the employee’s continuous service.’
The evidence
[8] At the hearing Victoria Bila (Group Manager, Operations) gave evidence on behalf of
the respondent and the applicant gave evidence on her own behalf.
[9] On 21 February 2017 the applicant signed a ‘Temporary Employee Agreement’ with
the respondent. This agreement included the following:
‘1. My employment with Spinifex Recruiting is as a temporary on an assignment by
assignment basis, with each assignment constituting of (sic) a discrete period of
employment. I may accept or reject any offer of an assignment from Spinifex
Recruiting. On completion of an assignment, whether satisfactory, or otherwise,
Spinifex Recruiting is under no obligation to offer me further assignments.
2. I understand that Spinifex Recruiting’s customer (not Spinifex Recruiting) controls
the length of any assignment and I accept that whilst Spinifex Recruiting may indicate
to me in good faith the potential length of any assignment with a customer, the
customer may vary the length of an assignment period or terminate my attendance at
an assignment at their absolute discretion. I agree to notify Spinifex Recruiting
without delay if I am informed by the customer of the completion date of an
assignment
…
7. My remuneration with Spinifex Recruiting is on an hourly basis determined
according to my classification and length of assignment. My hourly rate of pay
incorporates all relevant provisions of any relevant Award, Site or Enterprise
Agreement, and will include payments of, or in lieu of, benefits prescribed by relevant
legislation or Awards (including annual holidays, loadings, public holidays and sick
pay).’1
[10] On 6 March 2017 the respondent sent an email to the applicant confirming that she
would be starting an assignment with the Department of Justice (DOJ) - NSW Trustee &
Guardian as a Conveyancing Officer, commencing on 7 March 2017. The email said that the
assignment would go to 30 June 2017 and that the role was for 35 hours per week Monday to
Friday, with a half hour lunch break.2
[11] The applicant tendered in evidence all her timesheets for her assignment with DOJ. I
have examined these timesheets and they indicate that the applicant worked continuously for
the DOJ from 7 March to 26 October 2017, apart from weekends and public holidays and the
following days:
[2018] FWC 1363
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20 March;
11, 28 April;
8, 23, 24 May;
2, 16, 30 June;
10, 16, 25 August;
5, 18 September;
2, 23 October 2017.
[12] The applicant gave evidence that each of these days had been taken due to illness or
other pressing personal circumstances and had been authorised by her supervisor at the DOJ.3
[13] The applicant continued to work for the respondent at the DOJ after 30 June 2017.4 On
18 July 2017 the applicant received an email from the respondent advising her that the
assignment would be extended until 30 September 2017.5
[14] When asked what happened on 30 September 2017 the applicant said:
‘Spinifex never came back to us. We had work to do, we kept on going.’6
[15] The applicant explained that the reference to ‘us’ was to her and three other
‘temporary employees’ in her team who were also hired by the respondent, doing the same
work.7
[16] The applicant’s assignment with the DOJ was extended a second time in October
2017. According to the applicant:
‘The confirmation of the assignment being extended and having no end date set was
advised verbally by my supervisor Terry Saddick on 11 October 2017. This was
subsequently confirmed when I attended a meeting with Gary Ostro Senior Recruiter
for the respondent on 25 October 2017 between 12:15pm to 1:15pm at the
respondent’s office in Parramatta.’8
[17] When asked what happened on 30 September 2017 the applicant said:
‘We just continued on. And then we had discussions with our supervisor around 10
October and that’s when he said, “Look, we’re looking to have this as a no end
date.”’9
[18] The applicant said that the work she had been doing was continuing, the job she had
been doing had not been advertised for permanent filling, and ‘all the girls in my team are
still there.’10 She said that after 30 September 2017 ‘I didn’t have any dates, so I was
unaware of when we would be finishing.’11
[19] The applicant said that her employment was terminated on 26 October 2017 first
through a voicemail message left on her mobile phone by Mr Ostro and then through an
email.12 This included the following:
‘I have been informed by Dept of Justice that your temporary assignment has been
ceased as of today 26/10….
[2018] FWC 1363
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Your temporary employment has been ceased.’13
[20] Ms Bila gave evidence that the applicant was employed by the respondent as a casual
employee ‘for the purpose of temporary placements…The nature of each temporary
placement was that it was discreet (sic) engagement which could be (and was) ended by
either one of the parties at any time.’14
[21] Ms Bila said that ‘the host employer in these various periods (the Department of
Justice) notified the Respondent of the cessation of any temporary placement on 26 October
2017.’15
[22] Ms Bila stated:
‘At the time that the Department of Justice made it clear that they were ending any
temporary engagement, the Applicant was specifically told that while this assignment
had ended we would put her forward for other suitable assignments as and when they
became available.’16
Consideration
[23] The jurisdictional issue can be broken into four separate questions:
1. Was the applicant a casual employee?
2. Was she employed on a regular and systematic basis?
3. Had she worked for 6 months?
4. Did she have a reasonable expectation of continuing employment by the employer on
a regular and systematic basis?
[24] I am satisfied that the applicant was a casual employee. She was paid on an hourly
basis and was not paid for any time not worked. She was not entitled to paid annual or
personal leave.
[25] I am also satisfied that the applicant was employed on a regular and systematic basis.
She worked 35 hours per week Monday to Friday with a half hour lunch break. The only days
she had off were either public holidays or because of illness or other pressing personal
circumstances. These had been authorised by her supervisor at the DOJ.
[26] I am also satisfied that the applicant had worked for six months. She started work on 7
March 2017 and worked to 26 October 2017. That is a period of seven months and 19 days.
From this must be subtracted 16 days of unpaid leave taken by the applicant (equivalent to
just over three weeks of work), which still leaves a period in excess of six months.
[27] The most difficult question to resolve is whether, during her period of service, the
applicant had a reasonable expectation of continuing employment by the respondent on a
regular and systematic basis.
[28] Certainly the ‘Temporary Employee Agreement’ signed by the applicant would tend to
weigh against a reasonable expectation of continuing employment. It specifically stated that
the employment was temporary and on an assignment by assignment basis. However, one
must also look at how the employment evolved in practice.
[2018] FWC 1363
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[29] The applicant was first told by the respondent that her assignment with the DOJ would
be until 30 June 2017. However, that date came and went and the applicant simply continued
to work as normal. Some time later she was advised that she would work until 30 September
2017. However, again that date came and went. The applicant’s uncontested evidence is that
she was told by her supervisor at the DOJ (Terry Saddick) and the respondent’s Gary Ostro
that there was ‘no end date’ to the assignment with DOJ. Nor was there anything about the
work itself that suggested the applicant’s employment would do anything other than continue
indefinitely.
[30] In the circumstances, I am satisfied that the applicant had a reasonable expectation of
continuing employment on a regular and systematic basis.
Conclusion
[31] I am satisfied that the applicant had completed a period of employment with the
respondent of at least the minimum employment period. The respondent’s jurisdictional
objection is therefore dismissed.
[32] Further directions will be issued shortly in relation to the application for an unfair
dismissal remedy.
SENIOR DEPUTY PRESIDENT
Appearances:
P Tait, the applicant, in person.
P Macken, solicitor for the respondent.
Hearing details:
Sydney.
2017.
February 8 & 20.
Printed by authority of the Commonwealth Government Printer
PR600942
GOM MMISSION WORK FAIR THE SEAL O F THE OF THE PAIN WORK -
[2018] FWC 1363
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1 Exhibit 4, annexure 1
2 Exhibit 4, annexure 2
3 Exhibit 4 at [6]
4 PN257
5 Exhibit 4 at [9], annexure 4
6 PN261
7 PN263-264
8 Exhibit 4 at [10]
9 PN270
10 PN273-275
11 PN278
12 Exhibit 4 at [11]
13 Exhibit 4, annexure 5
14 Exhibit 1 at [2]
15 Exhibit 1 at [3]
16 Exhibit 1 at [5]
